R. v Cote and Buhrig Date:, 2011 BCPC 501

Citation: R. v Cote and Buhrig Date: 20111110 2011 BCPC 0501 File No: 32127-1 Registry: Duncan IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. CRAIG ROSAIRE COTE VIOLA BUHRIG RULING RE APPLICATION TO HAVE MR. TOUSAW REMOVED AS COUNSEL FOR CRAIG COTE OF THE HONOURABLE JUDGE WOOD Counsel for the Crown: T. Morgan Counsel for the Accused Cote: K. Tousaw Counsel for Accused Buhrig : B. Vaze

Place of Hearing: Duncan , B.C. Date of Judgment: November 10, 2011 [ 1 ] THE COURT: In this matter the Crown applies to have Mr. Tousaw removed as counsel of record for Craig Rosaire Cote, who, together with Viola Buhrig, is charged -- I take it, Mr. Morgan, I do not have an Information, but she is charged with cultivating, they are both charged with cultivating, are they? [ 2 ] MR. MORGAN: And s. 5(2) of the CDSA , trafficking, as well, a two-count Information. [ 3 ] THE COURT: Thank you. Well, let me just read those into the record. Both of whom are charged that on or about the 25th of November 2009, at or near Ladysmith, they (

a) unlawfully produced a controlled substance, to wit, cannabis marihuana, contrary to s. 7(1) of the Controlled Drugs and Substances Act , and (

b) did unlawfully possess that same controlled substance, cannabis marihuana, in an amount exceeding three kilograms for the purpose of trafficking, contrary to s. 5(2) of that same Act. [ 4 ] The basis of the Crown's application is that Mr. Tousaw acted for both Mr. Cote and Ms. Buhrig from the time of the onset of this prosecution, indeed from very shortly after the execution of a search warrant on Mr. Cote's property on November 25, 2009, at which time a substantial marihuana grow op was discovered.

That retainer continued for both until just days before both were scheduled to go to trial on April 11, 2011. [ 5 ] It appears, from what I have been told of the evidence, that at the time of the execution of the search warrant Ms. Buhrig was in residence at the location or on the premises of the actual grow op and, in addition to acknowledging that she was involved in some aspect of the grow op operation, she also told the police officers who interviewed her shortly after her arrest that she had been told by Mr.

Cote that the grow op was legal under the medical marihuana licensing regulations. [ 6 ] The trial that was scheduled for April the 11th did not proceed as scheduled, because in March of that year, Crown counsel raised the issue of a potential conflict between Mr. Cote and Ms. Buhrig based on the evidence available for trial, which included, as I have said, that statement by Ms.

Buhrig, which was given to the police either at the time or shortly after the time of her arrest. [ 7 ] That statement, together with the fact that it appears, again from what I have been told that, on that day, that is the 25th of November, the date alleged in the two charges, in fact Mr. Cote did not have a medical marihuana licence, although I am told by counsel that sometime shortly after the date of the seizure and the execution of the search warrant, in fact medical marihuana licences, two in total, were delivered to Mr.

Cote with respect to the property in question. [ 8 ] The issue of conflict, as I have said, led to an adjournment of the trial, and that was followed by Mr. Tousaw resigning from the brief of Ms. Buhrig, who then retained Mr. Vaze to act for her. [ 9 ] Both Mr. Tousaw and Mr. Vaze are associated in practice with the same law firm, Conroy & Company, located in Abbotsford, British Columbia, although Mr.

Tousaw advises that their practises are separate and their association with Conroy & Company is restricted to matters of administration and law office management. [ 10 ] It is perhaps on that basis that the Crown does not seek to have Mr. Vaze removed as counsel for Ms. Buhrig. [ 11 ] Notwithstanding that development, that is the resignation of Mr. Tousaw from Ms. Buhrig's brief, the Crown's position is that Mr. Tousaw can no longer act for Mr. Cote because of the potential for conflicting defences between him and Ms. Buhrig, and the fact that, by virtue of having acted for Ms.

Buhrig for at least 15 months or more, there is, at the very least, a reasonable inference that he is in possession of confidential information obtained from Ms. Buhrig during that time, which he could use to her detriment and, by doing so, effectively act against her. [ 12 ] Mr. Tousaw submits that there is no reality to that inference. He states that Mr. Cote takes no issue with Ms. Buhrig's statement to the police. He states that he cannot conceive of any circumstance arising in this trial where he would find it necessary to cross- examine Ms. Buhrig.

He asserts that he has not received any confidential information from Ms. Buhrig, that is to say any information that is not currently either "on the record or in the Crown's possession." [ 13 ] Mr. Vaze submits, on behalf of Ms. Buhrig, that the parties, that is Mr. Cote and Ms. Buhrig, are ad idem in respect of the various Charter issues that will arise at some point in the trial: those being, first of all, a s. 8 application by Ms. Buhrig alleging both the constitutional insufficiency of the telewarrant executed on November 25th, 2009, and the manner in which it was executed; secondly, a s. 11(

b) argument based on the delay of trial; and thirdly and finally and perhaps most importantly a challenge to the constitutional validity of the marihuana licensing laws and their attendant regulations. [ 14 ] In essence, both counsel say that there is no -- I should say that Mr. Vaze also submits that while there is a potential for a different outcome at the end of the trial, should it proceed to a determination of the substantive issues, that is not based on any disagreement between the parties on the facts. Ms. Buhrig's position is essentially that she had no mens rea , and Mr.

Cote takes no issue with that defence. He will or may say that he had no reason to doubt that he had a valid licence. If that is the case, of course, Mr. Cote as well may have a mens rea defence. [ 15 ] Mr. Vaze submits further that the reality is the context insofar as the facts known to counsel at the present time are concerned and not potentially theoretical possibilities. He says that Ms. Buhrig has not shared with Mr. Tousaw any information not already on the

record, and he personally is satisfied that Mr. Tousaw has no information about Ms. Buhrig that is not already known to Mr. Morgan. [16] Mr. Morgan's reply to counsel's submissions is that -- to put it in a nutshell -- trials are organic, meaning that one cannot saywhen a trial begins what direction it may take as the evidence unfolds and the position of the parties changes either substantially or in anuanced way as that evidence unfolds. [17] In essence, both counsel say there is no realistic possibility for a conflict to arise in connection with Mr. Tousaw'srepresentation of Mr.

Cote based upon his prior representation to Ms. Buhrig. [18] My starting point is this: Is there any realistic possibility that at some point in this trial Mr. Cote and Ms. Buhrig will developopposing interests?

I note that the position that the trial judge is in -- and I suppose I am at this point standing in the position of the trialjudge, whether or not I am to be the trial judge, I do not know, but I am assuming that the application is before me on that basis -- theposition of the trial judge is different from that of an appellate court, and much of the authority which has been provided to me bycounsel is appellate authority, which obviously views the issues from a somewhat different perspective and of course very much so withthe ability of hindsight. [19] In paragraph 33 of the Ontario Court of Appeal decision in R. v.

Widdifield, found reported inter alia at (ONCA), 100 C.C.C. (3d) 225, Mr. Justice Doherty says this: Where the issue is raised at trial, the court must be concerned with actual conflicts of interests and potential conflicts that may develop asthe trial unfolds. In deciding whether counsel should be permitted to act for co-accused, trial judges must, to some degree, speculate asto the issues which may arise and the course the trial will take.

The trial judges' task is particularly difficult since they cannot be privyto the confidential discussions which may have passed between the clients and counsel and which may reveal the source of potentialconflicts. Given those circumstances, trial judges must proceed with caution and when there is any realistic risk of a conflict of intereststhey must direct that counsel not act for one or perhaps either accused. [20] The potential evil that is at issue in this case, and I use the word "potential," was aptly described by Mr. Justice Ewaschuk in thecase of R. v.

Speid, a decision of the Ontario Supreme Court or High Court of Justice, as it was then known, found reported in [1983]O.J. No. 2441, at paragraphs 17 and 18, where Mr. Justice Ewaschuk said as follows: The most obvious justification for removal of a solicitor is to uphold the public's confidence in the proper administration of justice.

Asolicitor cannot properly serve clients opposed in interest, and once having chosen to serve a particular client, will not be allowed toadvance the cause of that client in a particular matter at the expense of what he has learned in confidence from the other client interestedin the same cause. 18 In Rakusen v Ellis et al. (supra) at page 843, Lord Justice Buckley states that a solicitor may be restrained “from giving the newclient any assistance…” and I underscore those words, “any assistance against the old client by reason of knowledge acquired as solicitorfor the old client.” Rakusen v.

Ellis et al. is found reported in [1912] 1 Ch 831 and is a decision of the English Court of Appeal [21] Counsel have both said that they know of no confidential information that could have passed from Ms. Buhrig to Mr.

Tousawduring the 15 months or more that he acted as her legal counsel in this matter. [22] I want to make it very clear that I accept that statement from both counsel, that is I accept that, given what they understand to bethe issues as they see them today and the potential for those issues to diverge or take new directions during the course of the trial, all ofwhich they have explained to me in some detail, they are not at this point aware of any information that could be considered confidentialthat could have a bearing on the issue which is at heart in this application, and I accept that. [23] The difficulty with that is twofold.

First of all, it is clear from what I have been told that both of these individuals have, to agreater or lesser degree, a potential defence of mens rea which either may choose, or not, to advance during the course of the trial. [24] Ms. Buhrig has clearly made a statement which bears in on that very issue. The Crown may or may not choose to introduce thatstatement in evidence. Whether it does so or not, Ms.

Buhrig may at some point -- and clearly the only point at which the decision wouldbe made would be at the close of the Crown's case -- decide that it is in her interest to give evidence on that very issue. [25] In doing so, at that point in time, evidence that at this point in time seems inconsequential, statements made by her to counselthat at this point seem inconsequential and of little moment, may suddenly become important to either a cross-examination of Ms. Buhrigor indeed a decision which might be taken at that point to have Mr. Cote give evidence that would in some respect be adverse in interestto Ms.

Buhrig. [26] The fact that counsel cannot at this point in time point to any evidence or information that may be considered confidential intheir view that might be in Mr. Tousaw's possession as a result of his long retainer by Ms. Buhrig, does not end the issue that I mustreview in considering the whole question of potential conflict. [27] In the decision of the Supreme Court of Canada in the Macdonald Estate v. Martin, which is found reported in(SCC), [1990] 3 S.C.R. 1235, at page 1260 and 1261, Mr.

Justice Sopinka pointed out the following: In my opinion, once it is shown by the client that there existed a previous relationship which is sufficiently related to the retainer fromwhich it is sought to remove the solicitor, the court should infer that confidential information was imparted unless the solicitor satisfies

the court that no information was imparted which could be relevant. This will be a difficult burden to discharge. Not only must the court's degree of satisfaction be such that it would withstand the scrutiny of the reasonably informed member of the public that no such information passed, but the burden must be discharged without revealing the specifics of the privileged communication.

Nonetheless, I am of the opinion that the door should not be shut completely on a solicitor who wishes to discharge this heavy burden. [ 28 ] Now, what must be kept in mind is all of that was said in the context of a civil case, a civil case in which the rules of disclosure had made all parties aware of what was, at the point in time when the issue arose, relevant information that would be bearing in on the substance of the issues that separated the parties. [ 29 ] That is not in any way consistent with an ongoing criminal trial.

As I have already indicated, criminal trials have a tendency to change direction from the time of the opening statements of counsel to the time of final verdict.

That is all the more so when there are multiple accused, as there is in this case, and where there is the potential for conflicting defenses. [ 30 ] In my opinion, at this point in time, and notwithstanding the statements of counsel which I accept as being a true reflection of what they honestly believe at this point in time, and as I have said, without any reflection whatsoever on their integrity, it is my view that they cannot apprehend, any more than I can or Mr.

Morgan can, what direction this trial may take when the time comes for the Crown to lead its evidence. [ 31 ] So, in all of the circumstances, I cannot be satisfied that, because of the longstanding retainer of Mr. Tousaw by Ms. Buhrig, that there does not exist a realistic possibility that at some point in this trial a circumstance will arise where indeed Ms.

Buhrig will, by virtue of something she says in evidence -- and her decision will only be taken at the close of the Crown's case when all of the Charter decisions have been decided against the accused and all of the Crown's evidence is in, if the case indeed gets that far, and it may not, but what I am dealing with here are possibilities and not certainties -- I cannot be satisfied that it will not then befall to Mr. Tousaw a very obvious duty to cross-examine Ms. Buhrig.

If that happens, there is the potential, as I say, the real risk that what at this point in time seems insignificant and inconsequential in terms of any communication which Ms. Buhrig may have made to Mr. Tousaw, will then become important and will put Mr. Tousaw in the unhappy position of in fact acting against his former client, as that phrase is used in the law. [ 32 ] I just add this final note, that it was suggested by Mr. Vaze that if that were to happen, at that point Mr. Tousaw could resign and new counsel could take on the duties on behalf of Mr. Cote.

But that would result in a disruption of the trial at the very least, if not a mistrial, and the circumstances would deal a further blow to the administration of justice insofar as the proper and regular proceedings of a trial are concerned. [ 33 ] So, accordingly and reluctantly, I must find that Mr. Tousaw must resign Mr. Cote's brief, and Mr.

Cote will have to obtain other counsel for the purposes of the trial. [ 34 ] I want to thank counsel for their submissions, for the work which they have put into these submissions, and I want to again emphasize that nothing that I have said here should be in any way taken to reflect upon the integrity of either counsel, and in particular Mr. Tousaw, who I am satisfied was doing everything that he felt was professionally responsible and that he has done so with integrity. But the circumstances are, as I have indicated, that unfortunately he must resign the brief. [REASONS CONCLUDED]